People v. Rodriguez

• Decision Date: 02 November 1995
• Docket Number: No. 2-93-1395,2-93-1395
• Citation: 276 Ill.App.3d 33,657 N.E.2d 699
• Parties: , 212 Ill.Dec. 498 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ceasar RODRIGUEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 699

657 N.E.2d 699

276 Ill.App.3d 33, 212 Ill.Dec. 498

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ceasar RODRIGUEZ, Defendant-Appellant.

No. 2-93-1395.

Appellate Court of Illinois Second District.

Nov. 2, 1995.

G. Joseph Weller Deputy Defender, Paul Alexander Rogers, Colleen M. Chang, Office of the State Appellate Defender, Elgin, for Ceasar Rodriguez.

Roger T. Russell, Boone County State's Attorney, Belvidere, William L. Browers, Deputy Director, Mary Beth Burns, State's Attorney Appellate Prosecutor, Elgin, for People.

Justice DOYLE delivered the opinion of the court:

Defendant, Ceasar Rodriguez, argues in this appeal that he was improperly transferred to adult court in the circuit court of Boone County.

Defendant was found guilty in a stipulated bench trial of the offense of unlawful delivery of a controlled substance, LSD (720 ILCS 570/401(a)(7)(A)(ii) (West 1992)) and was sentenced to six years' imprisonment. Originally, the offense had been charged as one count of a five-count petition for adjudication of wardship. The juvenile petition had contained two counts of unlawful delivery of a controlled substance and three counts of unlawful delivery of cannabis. During the proceedings on the five-count petition, the State filed a petition, pursuant to section 5-4(3)(a) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-4(3)(a) (West 1992)), requesting the trial court to allow defendant to be prosecuted as an adult.

Prior to a hearing on the petition for discretionary transfer to adult criminal prosecution, the State filed an amended petition, adding an allegation that, under section 5-4(7)(a) of the Act (705 ILCS 405/5-4(7)(a) (West 1992)), defendant must be prosecuted as an adult because he was at least 15 years old, had violated section 401(a)(7)(A)(ii) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(7)(A)(ii) (West 1992)), and had committed the violation while on public property within 1,000 feet of the real property comprising a school. Following a hearing, the trial court determined that the two counts of unlawful delivery of a controlled substance must be tried in adult court. Defendant was then charged as an adult by information with these two counts.

By agreement of the parties, one of these counts, count II, was sent back to juvenile court. Defendant proceeded to a stipulated bench trial in adult court on the other count, was convicted thereof, was sentenced to six years' imprisonment, and was ordered to pay a statutory assessment of $3,000. Count II was reinstated within the juvenile case. The court accepted defendant's admission to this count, adjudicated him to be delinquent, and made him a ward of the court. The court then terminated the wardship because defendant had been sentenced to imprisonment on count I. The three counts of the original petition pertaining to unlawful delivery of cannabis were dismissed.

Defendant filed a motion to vacate judgment of conviction, which was denied. Defendant then filed a timely appeal.

On appeal, defendant contends that: (1) he should not have been prosecuted as an adult because the gas station parking lot where he sold LSD did not constitute a public way as required for adult prosecution under section 5-4(7)(a) of the Juvenile Court Act; (2) the amended petition under which defendant's case was transferred to adult court was untimely filed and should have been dismissed; and (3) defendant should be given credit against his statutory assessment for each day that he was in custody.

Defendant first contends that the present case should not have been "automatically transferred" to the adult criminal court because the gas station parking lot, where the offense occurred, does not constitute a public way. Under section 5-4(7)(a) of the Act, a minor is subject to criminal prosecution if charged with an offense under section 401 of the Illinois Controlled Substances Act while "on a public way within 1,000 feet of the real property comprising any school, regardless of the time of day or the time of year." (705 ILCS 405/5-4(7)(a) (West 1992).) The facts, here, were undisputed that defendant's illegal sale of LSD occurred in a gas station parking lot which was located within 1,000 feet of a school.

Defendant maintains that, because the parking lot was on property owned by the gas station, it could not be considered a public way. To support his position, defendant first argues that the gas station parking lot does not "fit within the plain and ordinary meaning of the term public way." Thus far, the "public way" language of section 5-4(7)(a) of the Act has not been construed by the courts.

As defendant points out, no definition of "public" way appears in Black's Law Dictionary. Rather, behind the entry, the reader is directed to: "See Highway (Public highway)." (Black's Law Dictionary 1233 (6th ed. 1990).) In Webster's Third New International Dictionary "public way" is defined as:

"any passageway (as an alley, road, highway, boulevard, turnpike) or part thereof (as a bridge) open as of right to the public and designed for travel by vehicle, on foot, or in a manner limited by statute (as by excluding pedestrians or commercial vehicles)." Webster's Third New International Dictionary 1836 (1991).

In the court below, defendant argued that the plain and ordinary meaning of "public way" was, simply, "public thoroughfare." On appeal, defendant has abandoned defining the phrase "public way" and instead defines "public" and "way" separately. Combining the two separate definitions, defendant concludes that the phrase means "a way that is both open to the general public for unlimited use and maintained by some public entity."

The State contends here, as it did in the trial court, that the "public way" language of section 5-4(7)(a) of the Act should be analogized to the "public way" language of the aggravated battery statute (720 ILCS 5/12-4(b)(8) (West 1992)). In the latter statute the language has been interpreted to mean areas frequented by the public.

After hearing arguments pertaining to the definition of "public way", the trial court determined that the purpose of the legislature in enacting the statute in question was to create a safe zone around schools. The court concluded that, to accomplish this purpose, the legislature intended that "public way" should refer to any area where the public is invited to frequent. Because children might go to the gas station to use the rest room, to buy something, or, in some instances, to meet their parents, the court found that the gas station parking lot constituted an area where the public is invited. Therefore, the offense with which defendant was charged occurred on a public way, and he was subject to mandatory transfer to the adult criminal system. In reaching this decision, the court considered cases which had interpreted the term "public way" as it appears in the aggravated battery statute.

The aggravated battery statute states, in relevant part:

"(b) A person who, in committing a battery, commits aggravated battery if he

* * * * * *

(8) Is, or the person battered is, on or about a public way, public property or public place of accommodation or amusement[.]" (720 ILCS 5/12-4(b)(8) (West 1992).)

Defendant maintains that this court should decline to follow the interpretation given the aggravated battery statute because the language "on or about a public way" in the statute is much broader than the language "on a public way" which appears in section 5-4(7)(a) of the Juvenile Court Act.

Additionally, defendant asserts that because the language of the aggravated battery statute is not limited to "a public way," as is section 5-4(7)(a), but includes all of the following places: "public way, public property or public place of accommodation or amusement," cases interpreting the language of the aggravated battery statute are not relevant to an interpretation of the statute in question. To illustrate this point, defendant relies on four cases dealing with aggravated batteries occurring in parking lots. In our opinion, however, the cases support both the State's and the lower court's positions that cases interpreting the language of the aggravated battery statute are both beneficial and relevant to interpreting the public way language of section 5-4(7)(a).

The first of these cases, People v. Ward (1981), 95 Ill.App.3d 283, 50 Ill.Dec. 791, 419 N.E.2d 1240, was decided by this court. Ward dealt with a battery which occurred in a Holiday Inn parking lot. Defendant was charged with aggravated battery based on the situs of the alleged offense. Defendant challenged the charging document, arguing that the State's amendment of the information to state that the offense occurred on a "public place of accommodation" rather than on "public property" amounted to a fundamental, substantial defect, which precluded amendment of the information. This court determined that the defect in the information was formal and therefore amendable pursuant to section 111-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-5 (West 1992)). In reaching this determination, we stated:

"As we interpret this statutory language, the essential allegation for a charge under section 12-4(b)(8) is that the battery occurred in a public area. Whether the property was actually publicly owned and, therefore, 'public property' rather than a privately owned 'public place of accommodation' is irrelevant; what is significant is that the alleged offense occurred in an area accessible to the public." (Emphasis added.) Ward, 95 Ill.App.3d at 287-88, 50 Ill.Dec. 791, 419 N.E.2d 1240.

In two other cases, each of which involved a battery that occurred in an apartment building parking lot, the court relied on this court's language in Ward to find that the parking lots constituted public ways. (See People v. Williams (1987), 161 Ill.App.3d 613, 113 Ill.Dec. 457, 515 N.E.2d 266; People v. Pugh (1987), 162...